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STATE OF CONNECTICUT v. KENYA BROWN
(AC 41845)
DiPentima, C. J., and Alvord and Diana, Js.
Syllabus
The defendant, who had been convicted, on pleas of guilty, of the crimes
of assault in the second degree and threatening in the first degree,
appealed to this court from the judgment of the trial court denying his
motion to correct an illegal sentence. In 2006, the defendant had pleaded
guilty to assault in the second degree and was sentenced to eighteen
months of imprisonment to run consecutively to a sentence he was
serving for a 2003 conviction. In 2012, the defendant pleaded guilty to
threatening in the first degree and was sentenced to fifteen months of
imprisonment to run consecutively to his sentences for the 2003 and
2006 convictions. His motion to correct an illegal sentence challenged the
sentences from his 2006 and 2012 convictions. On appeal, the defendant
claimed that the statutes governing concurrent and consecutive senten-
ces (§ 53a-37) and addressing the method of calculation of sentences
(§ 53a-38) were ambiguous and contradictory in violation of his constitu-
tional rights. Held:
1. The defendant’s claim that §§ 53a-37 and 53a-38 (b) were ambiguous
and contradictory was unavailing: § 53a-37 clearly and unambiguously
provides that, where a person is subject to an undischarged term of
imprisonment and is sentenced to an additional term of imprisonment,
the sentences imposed by the court shall run either concurrently or
consecutively, as the court directs at the time of sentence, and § 53a-
38 (b), which governs the calculation of terms of imprisonment, provides
an unambiguous method of calculation to determine the total duration
of terms of imprisonment for concurrent and consecutive sentences,
and, therefore, §§ 53a-37 and 53a-38 were neither ambiguous nor contra-
dictory as applied to the defendant’s sentence; moreover, the court
lacked jurisdiction to adjudicate the defendant’s claim that his aggre-
gated sentence was illegal because policy changes by the Department
of Correction regarding the calculation and structure of prison sentences
negatively impacted his ability to seek or obtain an early release, as the
defendant did not attack the legality of the sentence imposed by the
court during the sentencing proceeding but, rather, the legality of his
sentence as subsequently calculated by the department, and for the
court to have jurisdiction over a motion to correct an illegal sentence
after the sentence has been executed, the sentencing proceeding itself
must be the subject of the attack; accordingly, the court should have
dismissed, rather than denied, that portion of the defendant’s motion
to correct.
2. The defendant could not prevail in his claim that § 53a-38 violated his
constitutional rights to due process, to be free from double jeopardy,
and to equal protection: the defendant’s claim that his right to due
process was violated because the aggregation of his sentences negatively
impacted his eligibility for parole and risk reduction credits was not
cognizable under a motion to correct an illegal sentence, and because
the defendant did not receive multiple punishments for the same offense
but, rather, received distinct sentences for separate offenses, his claim
that the aggregation of his consecutive sentences adversely affected his
eligibility for parole and risk reduction credits did not fall within the
ambit of double jeopardy; moreover, the defendant’s claim that § 53a-
38 (b) (2) violated his right to equal protection was unavailing, as our
Supreme Court has expressly stated that prisoners do not constitute a
suspect class, and § 53a-38 (b) (2), which contains a plausible policy
reason for the classification, meets the rational basis threshold.
Argued April 23—officially released August 27, 2019
Procedural History
Substitute information in the first case, charging the
defendant with the crime of assault in the second
degree, and two-part substitute information, in the sec-
ond case, charging the defendant with the crime of
threatening in the first degree, brought to the Superior
Court in the judicial district of Danbury, where the
defendant was presented to the court, Marano, J., on
a plea of guilty as to the crime of assault in the second
degree; judgment of guilty in accordance with the plea;
thereafter, the defendant was presented to the court,
Blawie, J., on a plea of guilty as to the crime of threaten-
ing in the first degree; judgment of guilty in accordance
with the plea; subsequently, the court, Welch, J., denied
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court. Improper
form of judgment; affirmed in part; judgment directed
in part.
Kenya O. Brown, self-represented, the appellant
(defendant).
Bruce R. Lockwood, supervisory assistant state’s
attorney, with whom, on the brief, were Stephen J.
Sedensky III, state’s attorney, and Edward L. Miller,
assistant state’s attorney, for the appellee (state).
Opinion
PER CURIAM. The self-represented defendant, Kenya
Brown, appeals from the trial court’s denial of his
motion to correct an illegal sentence. On appeal, the
defendant claims that (1) General Statutes §§ 53a-371
and 53a-382 are ambiguous and contradictory, and (2)
§ 53a-38 is unconstitutional because it violates his con-
stitutional rights to due process, to be free from double
jeopardy, and to equal protection. We reverse the judg-
ment of the trial court only as it relates to the portion
of the defendant’s motion to correct that advances argu-
ments that do not implicate the sentencing proceeding
itself. The court should have dismissed, rather than
denied, this portion of the motion. We affirm the judg-
ment of the trial court in all other respects.
The following facts are relevant on appeal. In 2003,
the defendant pleaded guilty to attempt to commit mur-
der in violation of General Statutes §§ 53a-49 and 53a-
54a, and robbery in the first degree in violation of Gen-
eral Statutes § 53a-134 (a) (2). The defendant was sen-
tenced to a total effective term of twenty years impris-
onment. In 2006, in connection with the assault of a
fellow inmate, the defendant pleaded guilty to assault
in the second degree in violation of General Statutes
§ 53a-60 (a) (2), and was sentenced to a term of eighteen
months of imprisonment to run consecutively to the
sentence he was serving for the 2003 convictions. In
2012, in connection with threats the defendant had
made in a letter to a judge, the defendant pleaded guilty
to threatening in the first degree in violation of General
Statutes § 53a-61aa, and was sentenced to a term of
fifteen months of imprisonment to run consecutively
to his sentences for the 2003 and 2006 convictions.
On January 10, 2018, the self-represented defendant
filed a motion to correct an illegal sentence challenging
the sentences from his 2006 and 2012 convictions.3 The
defendant argued that § 53a-37, governing concurrent
and consecutive sentences, and § 53a-38, addressing
the method of calculation for those sentences, were
ambiguous and contradictory, and violated his constitu-
tional rights to due process, to be free from double
jeopardy, and to equal protection. Pursuant to State v.
Casiano, 282 Conn. 614, 922 A.2d 1065 (2007), Assistant
Public Defender Jenna Carriero reviewed the defen-
dant’s motion and reported in writing to the court,
Welch, J., that ‘‘no sound basis exist[ed] for either the
correction of the defendant’s sentence in the manner
he outline[d] in his motion, or an appeal of the trial
court’s denial of that motion.’’ At a hearing on April 27,
2018, the court accepted Attorney Carriero’s report and
denied the defendant’s motion to correct an illegal sen-
tence. This appeal followed.
On appeal, the defendant claims the court erred in
denying his motion to correct an illegal sentence. The
defendant renews his argument that, as applied to his
sentences, §§ 53a-37 and 53a-38 are ambiguous and con-
tradictory and that § 53a-38 violated his constitutional
rights to due process, to be free from double jeopardy,
and to equal protection. We disagree with the
defendant.
We begin by setting forth our standard of review. ‘‘A
motion to correct an illegal sentence under Practice
Book § 43-22 constitutes a narrow exception to the gen-
eral rule that, once a defendant’s sentence has begun,
the authority of the sentencing court to modify that
sentence terminates.’’ State v. Casiano, supra, 282
Conn. 624. Practice Book § 43-22 states, ‘‘[t]he judicial
authority may at any time correct an illegal sentence
or other illegal disposition, or it may correct a sentence
imposed in an illegal manner or any other disposition
made in an illegal manner.’’ ‘‘An illegal sentence . . .
either exceeds the relevant statutory maximum limits,
violates a defendant’s right against double jeopardy, is
ambiguous, or is internally contradictory. . . . Senten-
ces imposed in an illegal manner have been defined as
being within the relevant statutory limits but . . .
imposed in a way which violates [a] defendant’s right
. . . to be addressed personally at sentencing and to
speak in mitigation of punishment . . . or his right to
be sentenced by a judge relying on accurate information
or considerations solely on the record, or his right that
the government keep its plea agreement promises
. . . . [These examples are not exhaustive and will
evolve to encompass rights or procedures] mandated
by state law that are intended to ensure fundamental
fairness in sentencing, which, if not followed, could
render a sentence invalid.’’ (Citations omitted; internal
quotation marks omitted.) State v. Parker, 295 Conn.
825, 839–40, 992 A.2d 1103 (2010). Because the defen-
dant’s claims raise questions of statutory interpretation
and the constitutionality of statutes, our review is ple-
nary. See State v. Meadows, 185 Conn. App. 287, 302–
303, 197 A.3d 464 (constitutionality of statutes subject
to plenary review), cert. granted on other grounds, 330
Conn. 947, 196 A.3d 327 (2018); State v. Holliday, 118
Conn. App. 35, 39, 982 A.2d 268 (2009) (statutory inter-
pretation subject to plenary review), cert. denied, 295
Conn. 909, 989 A.2d 605 (2010).
I
The defendant first claims that §§ 53a-37 and 53a-
38 are ‘‘ambiguous and contradictory.’’ Essentially, the
defendant’s argument on appeal is that because his 2006
and 2012 sentences run consecutively, they adversely
affected his original 2003 plea agreement and, therefore,
he was not provided fair notice that his ability to seek
an early release would be altered accordingly. The state
responds that the plain language of the two statutes
is neither ambiguous nor contradictory and that the
Department of Correction’s (department) ‘‘changing
policies regarding the calculation and structure of
prison sentences’’ is not a cognizable claim on a motion
to correct an illegal sentence. We agree with the state.
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning
[General Statutes] § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered.’’ (Internal quotation
marks omitted.) Smith v. Rudolph, 330 Conn. 138, 143,
191 A.3d 992 (2018).
Accordingly, we now turn to the language of §§ 53a-
37 and 53a-38. Section 53a-37 provides: ‘‘When multiple
sentences of imprisonment are imposed on a person at
the same time, or when a person who is subject to
any undischarged term of imprisonment imposed at
a previous time by a court of this state is sentenced
to an additional term of imprisonment, the sentence
or sentences imposed by the court shall run either
concurrently or consecutively with respect to each
other and to the undischarged term or terms in such
manner as the court directs at the time of sentence.
The court shall state whether the respective maxima
and minima shall run concurrently or consecutively
with respect to each other, and shall state in conclusion
the effective sentence imposed. When a person is sen-
tenced for two or more counts each constituting a sepa-
rate offense, the court may order that the term of impris-
onment for the second and subsequent counts be for
a fixed number of years each. The court in such cases
shall not set any minimum term of imprisonment except
under the first count, and the fixed number of years
imposed for the second and subsequent counts shall
be added to the maximum term imposed by the court
on the first count.’’ (Emphasis added.) Additionally,
§ 53a-38 (b), which governs the calculation of terms of
imprisonment, provides: ‘‘A definite sentence of impris-
onment commences when the prisoner is received in
the custody to which he was sentenced. Where a person
is under more than one definite sentence, the sentences
shall be calculated as follows: (1) If the sentences run
concurrently, the terms merge in and are satisfied by
discharge of the term which has the longest term to
run; (2) if the sentences run consecutively, the terms
are added to arrive at an aggregate term and are satis-
fied by discharge of such aggregate term.’’ (Empha-
sis added.)
Taken together, §§ 53a-37 and 53a-38 (b) are neither
ambiguous nor contradictory. The relevant portion of
§ 53a-37 specifically addresses situations, like the
defendant’s, where a person is subject to an undis-
charged term of imprisonment and is subsequently sen-
tenced to an additional term of imprisonment. The plain
language of § 53a-37 clearly and unambiguously pro-
vides that, in such circumstances, the sentences
imposed by the court shall run either concurrently or
consecutively, as the court directs at the time of sen-
tence. Additionally, § 53a-38 (b) provides an unambigu-
ous method of calculation to determine the total dura-
tion for terms of imprisonment where sentences run
concurrently and where sentences run consecutively.
Section 53a-38 (b) (2) provides that ‘‘if the sentences
run consecutively, the terms are added to arrive at an
aggregate term and are satisfied by the discharge of
such aggregate term.’’ The defendant’s term of impris-
onment reflects this calculation. Attorney Carriero indi-
cated that the defendant was ‘‘currently serving an
aggregate sentence of 20 years [and] 33 months.’’ The
defendant was sentenced to 20 years of imprisonment
in 2003, 18 months of imprisonment in 2006, and 15
months of imprisonment in 2012, each sentence running
consecutively. Adding the terms of these sentences
together, as required under § 53a-38 (b) (2), equals an
aggregate term of 20 years and 33 months. We conclude
that §§ 53a-37 and 53a-38 are neither ambiguous nor
contradictory as applied to the defendant’s sentence.
As to the defendant’s claim that his aggregated sen-
tence is illegal because the department’s changing
polices regarding the calculation and structure of prison
sentences have negatively impacted his ability to seek
or obtain an early release, the court lacked jurisdiction.
In order for the court to have jurisdiction over a motion
to correct an illegal sentence after the sentence has
been executed, the sentencing proceeding itself must
be the subject of attack. See State v. Casiano, supra,
282 Conn. 625. Because the defendant does not attack
the legality of the sentence imposed by the court during
the sentencing proceeding but, rather, the legality of his
sentence as subsequently calculated by the department,
his claim is not cognizable under a motion to correct
an illegal sentence. State v. Carmona 104 Conn. App.
828, 832–33, 936 A.2d 243 (2007), cert. denied, 286 Conn.
919, 946 A.2d 1249 (2008). Accordingly, the court should
have dismissed this portion of the defendant’s claim.
II
We turn now to the defendant’s claims that § 53a-38
(b) (2) violated his constitutional rights to due process,
to be free from double jeopardy, and to equal protection.
The state argues that each of these claims are meritless
and not cognizable on a motion to correct an illegal
sentence. We agree with the state.
‘‘We begin with the well established proposition that
[b]ecause a validly enacted statute carries with it a
strong presumption of constitutionality, those who
challenge its constitutionality must sustain the heavy
burden of proving its unconstitutionality beyond a rea-
sonable doubt. . . . In construing a statute, moreover,
we will search for an effective and constitutional con-
struction that reasonably accords with the legislature’s
underlying intent. . . . We also note that, [w]hen a
question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) State v. Evans, 329
Conn. 770, 809,189 A.3d 1184 (2018), cert. denied,
U.S. , 139 S. Ct. 1304, 203 L. Ed. 2d 425 (2019).
The basis of the defendant’s due process claim is that
the aggregation of his 2003, 2006, and 2012 sentences
pursuant to § 53a-38 (b) (2), violated his right to due
process because it negatively impacted his eligibility
for parole and risk reduction credits and, thereby, pre-
vented the state from keeping its plea promises and
deprived the defendant of fair notice ‘‘of these alter-
ations that take place after the sentence . . . .’’ We
reject the defendant’s argument. As previously noted in
part I of this opinion, the claims raised by the defendant
concerning his sentence as subsequently calculated by
the department are not cognizable under a motion to
correct an illegal sentence. See State v. Carmona, supra,
104 Conn. App. 832–33.4
The defendant next claims that § 53a-38 (b) (2) vio-
lated his right against double jeopardy because the
aggregation of his consecutive sentences negatively
impacted his eligibility for parole and risk reduction
credits and, thereby, resulted in multiple punishments.
The state argues that the defendant’s claim is meritless
because the constitutional guarantee against double
jeopardy prohibits multiple punishments for the same
offense and does not apply where a defendant’s consec-
utive sentences are aggregated for purposes of
determining parole eligibility. We agree with the state.
The United States Court of Appeals for the Second
Circuit, in Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir.
1983), explained that ‘‘[a] denial of parole is a decision
to withhold early release from the confinement compo-
nent of a sentence. It is neither the imposition nor the
increase of a sentence, and it is not punishment for
purposes of the Double Jeopardy Clause, even though
the [United States Parole] Commission’s decision to set
a later rather than an earlier parole release date may
sometimes result in a longer period of confinement than
might ultimately result from an increase in a court-
imposed sentence. Nevertheless it is the sentence that
is limited by the Double Jeopardy Clause, not the admin-
istrative decision to grant early release from confine-
ment.’’ This reasoning is applicable in the present case
because the defendant had not received multiple pun-
ishments for the same offense but, rather, received
three distinct sentences in 2003, 2006, and 2012 for
separate offenses. The defendant’s claim that the aggre-
gation of these consecutive sentences adversely
affected his eligibility for parole and risk reduction cred-
its does not, therefore, fall within the ambit of dou-
ble jeopardy.
The defendant’s last claim on appeal is that § 53a-38
(b) (2) violated his right to equal protection under the
law. The defendant claims that prisoners sentenced to
consecutive sentences are members of a ‘‘suspect
class.’’ We disagree. Our Supreme Court has expressly
stated that ‘‘prisoners do not constitute a suspect class.’’
Perez v. Commissioner of Correction, 326 Conn. 357,
384, 163 A.3d 597 (2017). Accordingly, the defendant’s
equal protection claim is subject to rational basis
review. See State v. Wright, 246 Conn. 132, 139, 716
A.2d 870 (1998) (‘‘The equal protection clause does not
require absolute equality or precisely equal advantages
[between such similarly situated persons] . . . . To
determine whether a particular classification violates
the guarantees of equal protection, the court must con-
sider the character of the classification . . . . Where
. . . the classification at issue neither impinges upon
a fundamental right nor affects a suspect group it will
withstand constitutional attack if the distinction is
founded on a rational basis.’’ [Citations omitted; internal
quotation marks omitted.]) ‘‘Rational basis review is
satisfied so long as there is a plausible policy reason
for the classification . . . . [I]t is irrelevant whether
the conceivable basis for the challenged distinction
actually motivated the legislature.’’ (Citations omitted;
internal quotation marks omitted.) Id., 139–40. We con-
clude that § 53a-38 (b) (2), which clearly contains a
plausible policy reason for the classification, meets the
rational basis threshold and therefore withstands the
defendant’s constitutional challenge on equal protec-
tion grounds.
The form of the judgment is improper, the judgment
denying the defendant’s motion to correct an illegal
sentence is reversed in part and the case is remanded
with direction to dismiss the portion of the defendant’s
motion to correct an illegal sentence that advances
arguments that do not implicate the sentencing pro-
ceeding itself; the judgment is affirmed in all other
respects.
1
General Statutes § 53a-37 provides: ‘‘When multiple sentences of impris-
onment are imposed on a person at the same time, or when a person who
is subject to any undischarged term of imprisonment imposed at a previous
time by a court of this state is sentenced to an additional term of imprison-
ment, the sentence or sentences imposed by the court shall run either
concurrently or consecutively with respect to each other and to the undis-
charged term or terms in such manner as the court directs at the time of
sentence. The court shall state whether the respective maxima and minima
shall run concurrently or consecutively with respect to each other, and
shall state in conclusion the effective sentence imposed. When a person is
sentenced for two or more counts each constituting a separate offense, the
court may order that the term of imprisonment for the second and subse-
quent counts be for a fixed number of years each. The court in such cases
shall not set any minimum term of imprisonment except under the first
count, and the fixed number of years imposed for the second and subsequent
counts shall be added to the maximum term imposed by the court on the
first count.’’
2
General Statutes § 53a-38 (b) provides: ‘‘A definite sentence of imprison-
ment commences when the prisoner is received in the custody to which he
was sentenced. Where a person is under more than one definite sentence,
the sentences shall be calculated as follows: (1) If the sentences run concur-
rently, the terms merge in and are satisfied by discharge of the term which
has the longest term to run; (2) if the sentences run consecutively, the terms
are added to arrive at an aggregate term and are satisfied by discharge of
such aggregate term.’’
3
In 2016, the defendant filed a motion to correct an illegal sentence, which
was subsequently denied. This prior motion is not the subject of this appeal.
4
Although this determination is dispositive of the defendant’s due process
claim, we note that the defendant does not have a cognizable liberty interest
in either his parole eligibility or his risk reduction credits. See Perez v.
Commissioner of Correction, 326 Conn. 357, 371–72, 163 A.3d 597 (2017)
(‘‘This court previously has held that parole eligibility under [General Stat-
utes] § 54-125a does not constitute a cognizable liberty interest sufficient
to invoke habeas jurisdiction. . . . It follows that if an inmate has no vested
liberty interest in the granting of parole, then the timing of when the board
could, in its discretion, grant parole does not rise to the level of a vested
liberty interest either. . . . [T]he award of risk reduction credit itself is at
the discretion of the respondent.’’ [Citations omitted; emphasis in original;
footnote omitted; internal quotation marks omitted.]).